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Kansas Attorney General Says Transgender Case Is About 'Reducing Cost'

Transgender Kansans were among those at a rally for LGBTQ equality at the State Capitol in March 2018.
C.J. Janovy
KCUR 89.3
Transgender Kansans were among those at a rally for LGBTQ equality at the State Capitol in March 2018.

Kansas Attorney General Derek Schmidt on Friday defended the state's decision to weigh in on a case that could limit transgender rights.

Asked by reporters about Kansas’ decision to join 15 other states in urging the U.S. Supreme Court to rule that it’s legal to fire people for being transgender, Schmidt noted that the 10th U.S. Circuit Court of Appeals, which includes Kansas, has taken that position.

“Almost certainly at some point, some plaintiff or group of plaintiffs is going to file a lawsuit to test the continued validity of the 2007 decision that binds Kansas today,” Schmidt said. “Or we can say, 'Let's do our part to try to get this in front of the Supreme Court as quickly as possible.' That adds certainty, it reduces litigation risk and cost.”

Schmidt was referring to the 10th Circuit’s decision that federal laws prohibiting sex discrimination do not protect transgender people.

That decision runs contrary to the majority of courts that have addressed the issue. And although Schmidt said the ruling was binding on Kansas, the state is free to adopt a broader interpretation of the law if it wishes, a legal expert said.

“They can always extend broader protections at the state than what the law requires,” said Kim Jones, an employment lawyer at Seyferth Blumenthal & Harris in Kansas City. “So even if the 10th Circuit took that position, as an employer, as an enforcement agency, they (Kansas) could take the position that, no, we are going to treat people better  than the law would require.”  

Kansas Attorney General Derek Schmidt
Credit Kansas Attorney General's Office
Kansas Attorney General Derek Schmidt

Schmidt made his remarks after Kansas joined a friend-of-the-court brief asking the Supreme Court to overturn another federal appeals court’s decision that it was illegal for a Michigan funeral home to fire an employee who was transitioning from male to female.   

The employee, Aimee Stephens, had told the funeral home’s owner that she was a transgender woman and planned to dress as a woman. The owner, a devout Baptist who believed that God created males and females in the traditional biological sense, said that was unacceptable and terminated her.

The Equal Employment Opportunity Commission sued on Stephens’ behalf but the case was dismissed. On appeal, the Sixth U.S. Circuit Court of Appeals reversed, finding that gender identity discrimination is a form of sex discrimination prohibited under Title VII.

Kansas and the other states argue in their brief that the Sixth Circuit decision “erases all common, ordinary understandings of the term ‘sex’ in Title VII and expands it to include ‘gender identity’ and ‘transgender’ status.”

“In doing so,” says the brief, “the lower court rewrites Title VII in a way never intended or implemented by Congress” when it passed Title VII as part of the Civil Rights Act of 1964. 

Jones said that while the 10th Circuit found that Title VII’s protection against sex discrimination does not extend to transgender individuals, many lawyers have managed to get around that by arguing that their transgender clients were discriminated against because they did not conform to gender stereotypes.

“And that is a form of sex discrimination that has been recognized by virtually all of the circuits, including the 10th. So nothing about that (2007) opinion would have necessitated Schmidt to do what he did,” Jones said.

“And, in fact, even in enforcing the laws for which his office is responsible, he could take the position that this is about sex stereotyping and that a transgender person should be protected because this is a form of sex discrimination.”

Schmidt told reporters that even if the Supreme Court finds that the firing of Stephens was illegal, “that still saves the state money because we don’t have, potentially, years of litigation sorting it out in the appeals courts.”

“Obviously, I’m going to advocate on the side of both federal and state as it’s applied in Kansas,” Schmidt said. “I’m not going to arbitrarily choose a different position, but I think as the state’s lawyer, the interest I’m trying to protect is in minimizing the state’s litigation risk, getting an answer, moving on with the least amount of hassle.”

“At the end of the day,” he added, “I’ve got to do my job.”

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies

Copyright 2018 KCUR 89.3

Dan Margolies is editor in charge of health news at KCUR, the public radio station in Kansas City. Dan joined KCUR in April 2014. In a long and varied journalism career, he has worked as a reporter for the Kansas City Business Journal, The Kansas City Star and Reuters. In a previous life, he was a lawyer. He has also worked as a media insurance underwriter and project development director for a video production firm.
Dan Margolies
Dan was born in Brooklyn, N.Y. and moved to Kansas City with his family when he was eight years old. He majored in philosophy at Washington University in St. Louis and holds law and journalism degrees from Boston University. He has been an avid public radio listener for as long as he can remember – which these days isn’t very long… Dan has been a two-time finalist in The Gerald Loeb Awards for Distinguished Business and Financial Journalism, and has won multiple regional awards for his legal and health care coverage. Dan doesn't have any hobbies as such, but devours one to three books a week, assiduously works The New York Times Crossword puzzle Thursdays through Sundays and, for physical exercise, tries to get in a couple of rounds of racquetball per week.